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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Australia.
Implementing jurisdictions: Commonwealth of Australia. Applies in all Australian states, territories and external territories.
Explanatory note: Australia is a federation with legislative powers divided between the Commonwealth of Australia as the federal entity and six federate states (Queensland, New South Wales, Victoria, Tasmania, Western Australia, South Australia). In addition, there are two federal territories (Northern Territory and Australian Capital Territory) with their own governments. The Commonwealth of Australia and each state and territory has its own court system. The New York Convention (‘NYC’) is enacted by the International Arbitration Act 1974 (‘IAA’), a Commonwealth Act applicable in all Australian states and territories, most recently amended in October 2018. The IAA also incorporates the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’) as applicable to international arbitrations.
In addition to the IAA, each state and territory has enacted domestic arbitration legislation (the Commercial Arbitration Acts (‘CAA’)). Before mid-2010, the CAAs of Australia’s six states and two territories were largely uniform but were not based on the Model Law. The CAAs applied to domestic arbitrations and to international arbitrations where the parties had chosen to opt out of the Model Law.
From mid-2010, the states and territories began revising their CAAs on the basis of the Model Law. The state of New South Wales took the lead, reforming its law on 28 June 2010. Similar changes have since been passed by the parliaments of Western Australia, Queensland, Tasmania, Victoria, South Australia, the Northern Territory and Australian Capital Territory.
2. Date of entry into force of the New York Convention
24 June 1975.
(Source: Gazette 1975, No. G24, p. 2.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
No.
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
The IAA, and consequently the NYC, applies to the recognition and enforcement of ‘foreign awards’, which are defined as arbitral awards made, in pursuance of an arbitration agreement, in a country other than Australia (IAA, s. 3). An award made in an international arbitration seated in Australia can be enforced under the Model Law, which is incorporated into Australian law by s. 16(1) of the IAA. Arts. 35 and 36 of the Model Law apply to the recognition and enforcement of arbitral awards in international arbitrations, including those made in Australia, to which the NYC is not applicable. Arts. 35 and 36 of the Model Law are similar to their equivalents in the NYC.
(Source: IAA, ss. 3, 16(1) and 20; Model Law, Arts. 1(3)(a) to (c), 35 and 36.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
In addition, there are Acts and Regulations that govern proceedings in the Federal and High Courts and state and territory courts that may be relevant to procedural aspects of the conduct of enforcement proceedings in Australia.
C. Limitation periods (time limits)
6. (a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
There are two relevant limitation periods. First, a limitation period within which proceedings for the recognition of a foreign award as a judgment of an Australian court may be commenced. Second, a limitation period within which proceedings to enforce that resulting judgment may be commenced.
As to the first of these limitations, as an award is contractual, normal contractual limitations apply to breaches of contract arising from a failure to perform the terms of an award. Each of the States and Territories of Australia has enacted relevant legislation in respect of the limitation period applicable to a breach of contract. In New South Wales, s. 20(2) of the Limitation Act 1969 (NSW) provides that the time period is: (a) where the award is made under an arbitration agreement and the arbitration agreement is made by deed, 12 years; and (b) in any other case, six years. These periods are the same in the other Australian States and Territories, except in Victoria and South Australia where the limitation period for an arbitration agreement made by deed is 15 years and in the Northern Territory where the limitation period for an arbitration agreement not made by deed is three years.
(Source: Limitation Act 1985 (ACT) s. 17; Limitation of Actions Act 1958 (Vic) ss. 5(1),(3); Limitation of Actions Act 1974 (Qld) ss. 10(1), (3); Limitation of Actions Act 1936 (SA) ss. 34-35; Limitation Act 2005 (WA) ss. 13, 18; Limitation Act 1974 (Tas) s. 4; Limitation Act (NT) s. 18).
The limitation period applicable in the Federal Court of Australia is that applicable in the State or Territory in which the proceeding is commenced: Judiciary Act 1903 (Cth) s. 79. The applicable limitation period will start running from the first default for which enforcement is sought: Limitation Act 1969 (NSW) s. 20(3); Hallen v Angledal [1999] NSWSC 552 (per Rolfe J).
As to the second of the applicable limitation periods, since the 2010 amendments to the IAA, a foreign arbitral award will be treated by a court of a State or Territory as if the award were a judgment or order of that court (s. 8(2), IAA). Accordingly, it appears (but has yet to be confirmed in a court) that the relevant limitation period for a foreign award (once recognised as a judgment) is that which applies to taking action on a court judgment, rather than that which applies to an arbitral award made in Australia.
On that basis these are the relevant limitation periods for each State and Territory:
New South Wales: 12 years, running from the date on which the award first becomes enforceable.
(Source: IAA, ss. 8(2) and 8(3); Limitation Act 1969 (NSW), s. 17(1).)
Victoria: 15 years from the date on which the award became enforceable.
(Source: IAA, ss. 8(2) and 8(3); Limitation of Actions Act 1958 (VIC), s. 5(4).)
Northern Territory: 12 years from the date on which the award first becomes enforceable.
(Source: IAA, ss. 8(2) and 8(3); Limitation Act 1981 (NT), s. 15(1)).
Queensland: 12 years from the date on which the award becomes enforceable.
(Source: IAA, ss. 8(2) and 8(3); Limitation of Actions Act 1974 (QLD), s. 10(4).)
Tasmania: 12 years from the date on which the award became enforceable.
(Source: IAA, ss. 8(2) and 8(3); Limitation Act 1974 (TAS), s. 4(4).)
Western Australia: 6 years from the date of accrual of the cause of action, which, in the case of a cause of action to enforce an arbitral award, is the date when default in observance of the award first occurs.
(Source: IAA, ss. 8(2) and 8(3); Limitation Act 2005 (WA), s. 13(1), 64.)
Questions arise as to the interplay between the Limitation Act 2005 (WA) and the Civil Judgments Enforcement Act 2004 (WA). The relevant provisions of the latter read:
- An order to enforce a judgment ‘must not be made if 12 years have elapsed since the judgment took effect’ (s. 12).
- ‘A judgment has effect (i) at the time it is given or (ii) if it provides, or the court giving it orders, that it has effect from an earlier or later time, at that time’ (s. 11(1)).
Leave of the court is required before enforcing a judgment if, inter alia, 6 years have elapsed since the judgment took effect; the person seeking to enforce the judgment was not personally a party to the case in which the judgment was given; or the person liable to satisfy the judgment was not personally a party to the case in which the judgment was given (s. 13).
Australian Capital Territory: 12 years from the date when the award first becomes enforceable.
(Source: ss. 8(2) and 8(3); Limitation Act 1985, s. 14(1) (ACT).)
South Australia: Actions upon any award shall be commenced within 15 years after the cause of action accrued
(Source: ss. 8(2) and 8(3); Limitation of Actions Act 1936 (SA), ss. 34 and 35.)
For the enforcement of judgments recognized by the Federal Court of Australia, the Court will apply the law of the State or Territory in which the proceedings have been initiated (Judiciary Act, 1903 (Cth), s. 79).
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
A competent court of a state or territory or the Federal Court of Australia.
(Source: IAA, ss. 3, 8(2) and 8(3).)
In determining whether a court has jurisdiction, it is important to consider the value of the award and the procedural rules of the court to ensure the court has proper power to enforce or recognize. As a matter of practice, enforcement proceedings will be commenced either in the Supreme Court of the relevant state or territory, or in the Federal Court.
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
There are no requirements regarding domicile or location of assets within the jurisdiction. This was confirmed in Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276. In practice, enforcement will be sought only if: (a) assets are located in the jurisdiction; or (b) attachment of a debt is sought and the debtor is located within the jurisdiction.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Enforcement proceedings are generally commenced inter partes. A party may be granted leave to proceed ex parte in circumstances as prescribed by the relevant procedural rules of each State or Territory court. The procedure across Australia's States and Territories is not uniform in this respect. The Rules of Court and Practice Notes of the Federal Court and the NSW Supreme Court contemplate that enforcement proceedings generally will be commenced inter partes. However, the Federal Court permits ex parte applications for enforcement (Federal Court Rules, O 28.13(5)). The Rules of Court of the Supreme Court of Victoria prescribe that an application to set aside an award must be served on any person whose interest may be affected (Rule 9.10, Supreme Court (Chapter II Arbitration Amendment) Rules 2014 (Vic)). No such service requirement is prescribed for an application to enforce a foreign award (Rule 9.04) and the prescribed form of application (Form 2-9B) provides for the enforcing party to specify whether it intends to serve on any or all respondents. This therefore allows enforcement proceedings to be commenced ex parte. The Victorian Court of Appeal in IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248 (‘Altain Khuder’) confirmed that where there is an issue as to whether the award debtor is a party to the arbitration agreement, proceedings should be commenced inter partes.
Subject to the applicable rules, proceedings may, for example, be commenced ex parte where a party is seeking a freezing order in support of proceedings commenced for recognition and enforcement of a foreign award (see e.g. Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No. 2) [2012] FCA 276, where ex parte enforcement proceedings were coupled with an ex parte application to freeze the assets (shares in an Australian company) over which enforcement was sought).
10. (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two. As stated under Q. 7, an action to recognize or enforce a foreign award would usually be commenced in the relevant state Supreme Court or the Federal Court. Appeals from a state Supreme Court are heard, in limited cases, by the state's Court of Appeal or Full Court (as the case may be). If the enforcement action was commenced in the Federal Court, appeals are heard, in limited cases, by the Full Court of the Federal Court.
From the Full Court of the Federal Court or from a state Court of Appeal or Full Court (as the case may be), a party can seek leave to appeal to Australia’s apex court – the High Court of Australia –
but leave is rarely given. There must be an error in the lower court’s decision and reviewing the decision must be of sufficient public interest to warrant the attention of the High Court of Australia.
There has only been one occasion in which the High Court of Australia has had to consider the enforcement of an arbitral award but those proceedings were not strictly in the nature of an appeal (although they arose from a decision of the Full Court of the Federal Court of Australia). Rather, TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia & Anor (2013) 251 CLR 533, involved an application to the Court in its original jurisdiction in which TCL challenged the constitutionality of the IAA. That challenge was unanimously rejected.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
New South Wales: After obtaining a writ of execution for the court’s judgment recognizing the foreign award. The UCPR sets out the circumstances in which leave of the court will be required before a writ of execution can be issued.
(Source: UCPR (NSW), Pt 39, Div. 1.)
Victoria: There is no statutory authority on this issue but the position would likely be the same as in Western Australia (see below).
Western Australia: As soon as a judgment enforcing the award has been handed down by a court.
(Source: Civil Judgments Enforcement Act 2004 (WA), s. 11.)
E. Evidence required
12. (a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied: (i) the duly authenticated original award or a duly certified copy and the original arbitration agreement under which the award purports to have been made or a duly certified copy; (ii) a certificate purporting to be signed by the Secretary to the Department of Foreign Affairs stating that a country specified in the certificate is, or was at a specified time, a signatory to the NYC; (iii) a copy of the Gazette containing a proclamation being proof of the fact that Australia has acceded to the NYC and the fact that the NYC entered into force for Australia on or before the date so fixed.
If enforcement of an award is sought against a non-signatory to an arbitration agreement, the award creditor should supply additional evidence to prove, on a prima facie basis, that the award debtor is bound by the arbitration agreement (Altain Khuder, [137]ï€[139] (Hansen JA and Kyrou AJA)).
(Source: IAA, ss. 9(1) and 10.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The relevant parts of the documents (e.g. the arbitration agreement and the dispositive part of the award) are necessary. However, it may be prudent for the petitioner to submit the entire award and the entire contract containing the arbitration agreement pursuant to which the award purports to have been made (Altain Khuder). These may, in any event, be required by the court depending on what defence to enforcement is raised.
(c) Are originals or duly certified copies required?
Originals or duly certified copies.
(Source: IAA, s. 9.)
(d) How many originals or duly certified copies are required?
One original or duly certified copy. However, the standard practice is to provide the court with two copies (one of which is the original or certified copy), plus one copy for each party to the proceedings.
(e) Does the authority or court keep the originals that are filed?
New South Wales: Yes.
(Source: State Records Act 1998 (NSW) No. 17, ss. 3 and 22(3); State Records Regulation 2015 (NSW), s. 6 and Schedule 2.)
Victoria: Yes.
(Source: Public Records Act 1973 (VIC), s. 2 (definition of ‘public record’).)
Western Australia: Yes.
(Source: State Records Act 2000 (WA)).
13. (a) Is it necessary to provide a translation of the documents supplied?
(b) If yes, into what language?
English.
(Source: IAA, s. 9(3).)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes, the translation must be certified by a diplomatic or consular agent in Australia of the country in which the award was made or otherwise to the satisfaction of the court. In practice, however, some courts accept translations made by official, certified, Grade 1 translators without further certification.
(Source: IAA, s. 9(4).)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
A full translation of any documentation presented to the court is required.
F. Stay of enforcement
14. (a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. S. 8(8) of the IAA implements Art. VI of the NYC.
(Source: IAA, s. 8(8).)
In Hallen v Angledal, the Supreme Court of NSW considered the court’s discretion under Art. VI of the NYC to stay local proceedings pending the outcome of an application to set aside an arbitral award at the place where it was made. Refusing to grant the stay, Justice Rolfe held that in order to grant a stay under s. 8(8) of the IAA, the party requesting the stay must show first that proceedings had been brought before a competent authority, second that those proceedings were for the setting aside or suspension of the arbitral award in question, and third that there is some prima facie or reasonably arguable case.
(Source: Hallen v Angledal [1999] NSWSC 552, Supreme Court of New South Wales.)
By contrast, an application for adjournment of enforcement proceedings pending the resolution of a setting-aside application in Singapore was successful in Toyo Engineering Corp. v John Holland Pty Ltd. In that case, Justice Byrne of the Supreme Court of Victoria noted the following circumstances: (i) the setting aside (the case refers to it as an ‘impeachment application’) application in Singapore was not hopeless; (ii) adequate security for payment of the award was offered, should it survive the setting-aside application; (iii) the setting-aside application had been brought promptly; and (iv) there was no relevant prejudice to the other party. The applicant had further submitted that if an adjournment was refused and the award was subsequently set aside, it would suffer some prejudice in the form of trouble, expense and delay in seeking to recover money paid under the award from the other party. Granting the adjournment, Justice Byrne regarded as determinant the fact that the adjournment would be for a relatively short time.
(Source: Toyo Engineering Corp. v John Holland Pty Ltd [2000] VSC 553 per Justice Byrne , Supreme Court of Victoria.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Under federal insolvency legislation, leave is required before proceedings can be commenced against an insolvent debtor. Often the grant of leave will be conditional upon a promise not to enforce judgment without seeking further leave. In determining whether to grant leave, the court will consider, among other things, the effect of enforcement on the insolvent debtor’s ability to satisfy its creditors. Certain enforcement actions against the property of an insolvent company will be prohibited where the company is the subject of an actual or proposed winding-up order.
(Source: Bankruptcy Act 1966 (Cth), s. 60; Corporations Act 2001 (Cth), ss. 440D and 500(2).)
New South Wales: The court has a general discretion to order a stay of proceedings before it, either permanently or until a specified day.
(Source: Civil Procedure Act (NSW) 2005, s. 67.)
Victoria: The relevant court has a general power to stay its proceedings where such proceedings are ‘scandalous, frivolous or vexatious’ or ‘an abuse of the process of the court’.
(Source: County Court Civil Procedure Rules 2018, r. 23.01; Supreme Court (General Civil Procedure) Rules 2005, r. 23.01.)
Western Australia: A person against whom a judgment is given may apply for an order suspending enforcement of the judgment, but the court will make an order only if there are special circumstances that justify doing so. The court may also deal with a suspension application in the absence of the person entitled to the benefit of the judgment if it is just to do so.
(Source: Civil Judgments Enforcement Act 2004 (WA), s. 15.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The court may order the party seeking the stay to give suitable security. An example of a court requiring security as a condition for the adjournment/stay of an application to enforce a foreign award is ESCO Corporation v Bradken Resources Pty Ltd [2011] FCA 905.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such
documents?
New South Wales: Access to court-filed documents may be granted to non-parties only with leave of the court. Leave will not be granted if the judge or registrar considers that the documents should be kept confidential. Parties to enforcement proceedings can and should ensure that confidentiality is maintained by seeking a specific order that the file remain confidential.
(Source: UCPR, r. 36.12; Supreme Court Practice Note SC Gen 2.)
Victoria: Any person may, upon payment of a fee, inspect and obtain a copy of any document filed in a court proceeding. However, this right will be removed where the court orders that any document should remain confidential or, in the case of a non-party, the prothonotary decides that a document should remain confidential to the parties.
(Source: Supreme Court (General Civil Procedure) Rules 2015 (VIC), r. 28.05.)
Western Australia: For cases commenced after 1 March 2018, any person may access specified information in respect of cases commenced in the General Division. This right is limited (e.g. the name of the parties, the name of documents filed in the proceedings and the current status of the proceedings). Any person may also apply to court for access to other documents filed in the proceedings. The right to access will be removed where, upon an application by a party to the proceedings, the court orders that any document should remain confidential. For cases cases commenced before 1 March 2018, a person wanting to inspect documents filed in legal proceedings for recognition and enforcement of an arbitral award would require leave of the court, and very cogent reasons would have to be provided to obtain leave. Leave would likely be granted to inspect documents that have been read in open court or tendered as evidence. Note however in practice that any person with access to the court's Electronic Document System will have access to whatever information is available (e.g. name of parties, filed documents and current status), unless access has been restricted.
(Source: Rules of the Supreme Court 1971 (WA), Orders 67 and 67B)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Hearings are not automatically confidential. However, court business in relation to any proceeding may be conducted privately in certain circumstances, such as where the presence of the public would defeat the ends of justice.
(Source: e.g. Civil Procedure Act 2005 (NSW), s. 71; Open Courts Act 2013 (VIC), s 30)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove names of parties or avoid publication of confidential information (such as business or State secrets)?
Yes, decisions are sometimes published. The court may issue an order prohibiting the publication or disclosure of any information tending to reveal the identity of a party to proceedings if it considers this necessary for the proper administration of justice.
(Source: Court Suppression and Non-publication Orders Act 2010 (NSW), Part 2; Open Courts Act 2013 (Vic), Part 2.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign
awards?
An interim measure (as defined in Art 17 of the Model Law), whether in the form of an award or some other form, that is granted by an arbitral tribunal seated in any country, shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to a court in Australia, unless the court refuses to recognize or enforce the measure on one or more of the grounds set out in Art 17I of the Model Law.
(Source: Model Law Arts 1(2), 17H; IAA s16(1).)
Partial awards containing final decisions on some of the disputed issues are enforceable like final awards. Queensland distinguishes between arbitral orders and awards. In Resort Condominiums, the Supreme Court of Queensland held that a decision ‘must determine finally at least some of the matters in dispute before the parties’ for it to be considered an award within the meaning of the NYC (at para. 37). Australian law is applied to the question of whether or not a decision is characterized as an award or an order. The arbitral tribunal’s own characterization is not determinative.
(Source: IAA, s. 3(1); Resort Condominiums International Inc. v Bolwell (1993) 118 ALR 655, Supreme Court of Queensland.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
New South Wales: The court has the power to enforce an award in the same manner as a judgment or order of the court. Accordingly, the court can exercise its ordinary powers to order non-monetary relief.
(Source: CAA (NSW), s. 33; UCPR (NSW), 36.1; Supreme Court Act 1970 (NSW), Pt 5, Div. 1; District Court Act 1973 (NSW), s. 6.)
Victoria: Same as for New South Wales.
(Source: Magistrates Court Act 1989 (VIC), s. 100; County Court Act 1958 (VIC), s. 37(1)(a).)
Western Australia: Same as for New South Wales.
Van der Garde BV v Sauber Motorsport provides an example of where an Australian court has enforced non-monetary relief that was granted in a foreign award. In that case, the Supreme Court of Victoria enforced a foreign award that required the respondent to refrain from taking any action which would deprive Mr van der Garde (the second applicant, and the person whom the first applicant represented) of his entitlement to participate in the 2015 Formula One Season as one of the respondent's two nominated race drivers. (The respondent's appeal was dismissed by the Court of Appeal.). The award being enforced had in turn confirmed an order made by an emergency arbitrator. The entire process (from the emergency arbitrator's appointment to enforcement of the award in Victoria) took just four months and the court process from commencement to determination of the appeal took seven days.
(Source: CAA (WA), s. 33; Civil Judgments Enforcement Act 2004 (WA), Pt 5; Giedo van der Garde BV & Giedo Gijsbertus Gerrit van der Garde v Sauber Motorsport AG [2015] VSC 80; Sauber Motorsport AG v Giedo van der Garde BV & Ors [2015] VSCA 37.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Where an award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration, and the decisions on matters submitted to arbitration can be separated from those on matters not submitted to arbitration, the part of the award containing the former decisions may be enforced.
(Source: IAA, s. 8(6).)
An award can be enforced in part, whether this need arises from the fact that part of the award has already been performed or from the fact that the award contained a bad but severable provision (e.g. an uncertain provision). However, severance will not be allowed where the remainder of the award is affected by the provision that is rejected.
(Source: ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc. and Anor [1997] 2 VR 31, Supreme Court of Victoria. Confirmed in Aircraft Support Industries Pty Ltd v William Hare UAE LLC (2015) 324 ALR 372 per Bathurst CJ at [57]-[61].)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
IAA, s. 8(5)(f), mirrors Art. V(1)(e) of the NYC, including the discretion implied by the words ‘the court may’. However, Australian courts have never been asked to consider enforcing an award that has been set aside at its place of origin. Australian courts would be likely to consider the approach adopted by courts in the United Kingdom, and probably also Hong Kong and Singapore. The English High Court has exercised its discretion to refuse enforcement of a foreign award that had been set aside by the Cairo Court of Appeal (Malicorp Ltd v Government of the Arab Republic of Egypt [2015] EWHC 361 (Comm)).
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
While the legislative and procedural regime in Australia for the enforcement of foreign arbitral awards is relatively straightforward and generally inexpensive, the courts have the power to order a party seeking enforcement to provide security for costs. They may exercise this discretion in the context of enforcement proceedings, particularly where the plaintiff is a corporation and/or ordinarily resident abroad.
Country Rapporteur: Simon Greenberg
Other contributors: Martin Scott, Anthony Lo Surdo, Simon Davis, Isuru Devendra, Matt di Marco, Bronwyn Lincoln, Matthew Secomb